Barbri - Constitutional Law

Front 1

Cases and Controversies Requirement

Back 1

In order for federal courts to hear a case, the following factors must be present:

1. Standing
2. Ripeness
3. No mootness
4. No political question

Front 2

Standing

Back 2

Standing requires:

1. Injury
2. Causation
3. Redressability

Generalized grievances are NOT permitted

• Generally, taxpayers do not have standing based only upon their status as taxpayers
• BUT taxpayers may challenge government expenditures pursuant to statute under the Establishment Clause

Front 3

Standing: Injury

Back 3

Plaintiff must allege and prove that:

1. He has suffered an injury, or
2. Likelihood of future harm

Plaintiff must suffer the injury personally

Front 4

Standing: Causation & Redressability

Back 4

Plaintiff must prove that:

1. Defendant caused the injury, and
2. That a favorable court decision is likely to remedy the injury

Front 5

Third Party Standing

Back 5

Third party standing is allowed when:

1. There is a close relationship between plaintiff and injured third party (e.g., doctor-patient)
2. Third party is unlikely to be able to assert his own rights
3. Plaintiff himself meets all standing requirements

An organization may sue for its members when:

1. Member would have standing to sue
2. Interests are germane to organization's purpose
3. Neither the claim nor relief requires participation of individual members

Front 6

Ripeness

Back 6

Ripeness is whether a federal court may grant pre-enforcement review of a statute/regulation

• Court examines the hardship that will be suffered without pre-enforcement review
• Issue is whether court has all the resources it needs to make a decision immediately

Front 7

Mootness

Back 7

If events after filing of a lawsuit end the plaintiff's injury, the case becomes moot

• Generally, court dismisses case if moot

Exceptions to dismissal for mootness

1. Wrong capable of repetition but evading review - injuries will continue to happen but will always evade review (e.g., pregnancy issues)
2. Voluntary cessation - if defendant voluntarily halts offending conduct, but can resume it any time, the case may still be heard
3. Class action lawsuits - so long as at least 1 member of the class has an ongoing injury, the case will still be heard

Front 8

Political Question

Back 8

Court will NOT adjudicate constitutional violations that are specifically reserved to another branch, such as:

1. Republican Form of Government Clause
2. President's decision making in foreign policy
3. Impeachment and removal processes
4. Partisan gerrymandering

Front 9

Supreme Court Review

Back 9

Appellate jurisdiction

1. Cases from federal courts of appeals
2. Cases from a state's highest court
3. Appeals from some decisions of 3-judge federal district court panels (statute requires 3-judge panel)

Original jurisdiction

1. Cases involving ambassadors, public ministers, and consuls
2. Cases involving suits between states

Front 10

Independent and Adequate State Law Ground

Back 10

If a state court decision rests on two grounds, one state law and one federal law, the Supreme Court may NOT hear the appeal if:

• The case's final decision rests on independent and adequate state law grounds, such that the federal issue will NOT change the outcome
• State court may rely on federal law for guidance only, and must make that clear (otherwise Supreme Court can hear appeal)

Front 11

Sovereign Immunity

Back 11

Federal and state courts may NOT hear suits against state governments

• 11th Amendment

Exceptions (state may be sued)

1. Waiver by state
2. Section 5 of the 14th Amendment
3. Federal government may sue state governments
4. Bankruptcy proceedings

Front 12

Federal Court Review: Abstention

Back 12

Pullman Abstention

• Federal court should NOT adjudicate the constitutionality of state statutes/regulations until the state has decided the issue
• If a state decision on the issue would potentially avoid a federal issue, the federal court should abstain until the state court can decide the issue

Younger Abstention

• Federal court will abstain until the state has completed a criminal prosecution

Front 13

Taxing & Spending Power

Back 13

Congress may tax and spend for the general welfare

Front 14

Commerce Power

Back 14

Congress may regulate:

1. Channels of interstate commerce
2. Instrumentalities of interstate commerce (planes, trains, trucks, etc.)
3. Persons or things in interstate commerce
4. Economic activities that have a substantial effect on interstate commerce

Regulating economic activity

• Must have a substantial effect on interstate commerce for Congress to regulate
• For non-economic activity, the substantial effect may NOT be based on cumulative impact
• Congress may NOT regulate inactivity

Front 15

Tenth Amendment Limits on Congress

Back 15

Congress may NOT compel state regulatory or legislative action

• BUT Congress can induce state government action through its spending power (so long as the conditions are expressly stated and relate to the purpose of the spending program, and conditions may not be unduly coercive)
• Congress MAY prohibit harmful commercial activity by state governments

Front 16

Congressional Power Under Section 5 of the Fourteenth Amendment

Back 16

Congress may NOT create new rights or expand the scope of rights

• May act ONLY to prevent or remedy violations of rights already recognized by courts
• Congressional enactments must be congruent and proportional to remedying the constitutional violation
  

Front 17

Delegation of Powers

Back 17

Congress may delegate legislative power

• BUT Congress may NOT delegate executive power to itself or its officers

Bicameralism and presentment requirement

• All Congressional actions are subject to bicameralism (passage by both houses) and presentment (present to President to sign or veto)
• Legislative veto and line-item vetoes are unconstitutional

Front 18

Foreign Policy: Treaties

Back 18

Treaties

• Agreements between the U.S. and a foreign country
• Negotiated by the President
• Effective when ratified by the Senate

Conflict of laws

• Treaties control over conflicting state laws (conflicting state law is invalid)
• If a treaty conflicts with federal law, whichever is adopted last in time controls
• If a treaty conflicts with the Constitution, the Constitution controls (treaty is invalid)

Front 19

Foreign Policy: Executive Agreements

Back 19

Executive Agreements

• Agreement between the U.S. and a foreign country
  
• Effective when signed by President and head of the foreign nation
• May be used for any purpose

Conflict of laws

• Executive agreements control over conflicting state laws
• If an executive agreement conflicts with federal law or the Constitution, federal law or the Constitution controls

Front 20

President's Power as Commander-in-Chief

Back 20

President has broad powers as commander-in-chief to use American troops in foreign countries

Front 21

Executive Power: Appointment Power

Back 21

President appoints:

1. Ambassadors
2. Federal judges
3. Officers of the U.S.

Congress may vest appointment of inferior officers (subject to removal and supervision) in:

1. President
2. Heads of departments
3. Lower courts
   
   

President may NOT make recess appointments for intrasession recesses that are less than 10 days

Front 22

Executive Power: Removal Power

Back 22

President has broad power to remove executive officers, unless limited by statute

Congressional limitations on removal

1. Congress can limit removal for offices where independence from the President is desirable (e.g., independent counsel)
2. Congress may limit removal to for cause, BUT it may NOT prohibit removal

Front 23

Impeachment & Removal from Office

Back 23

Persons who can be impeached and removed from office for treason, bribery, or high crimes and misdemeanors

• President
• Vice President
• Federal judges
• Federal officers

Impeachment requires:

• Majority vote in House of Representatives

Removal requires:

• 2/3 vote for conviction in Senate

Front 24

Executive Privilege & Immunity

Back 24

President has absolute immunity for civil suits for money damages for any actions while in office

• BUT President does NOT have immunity for actions that occurred prior to taking office

President has executive privilege for presidential papers and conversations

• BUT privilege must yield to other important government interests

Front 25

Executive Power: Pardons

Back 25

President has power to pardon those accused or convicted of federal offenses

President may NOT pardon for:

• Impeachment
• State crimes
• Civil liability

Front 26

Federalism: Preemption

Back 26

Express preemption

• Federal law explicitly says that the federal law is exclusive on an issue, then that federal law preempts state law on the issue

Implied preemption

• If federal and state laws are mutually exclusive, then the federal law preempts the state law
• If state law impedes the achievement of a federal objective, then federal law preempts state law
• If Congress evidences a clear intent to preempt state law (through language or structure of statute), then federal law preempts state law (e.g., immigration)

States may NOT tax or regulate federal government activity

Front 27

Dormant Commerce Clause (DCC) (aka Negative Implication of the Commerce Clause)

Back 27

State law is unconstitutional if it places an undue burden on interstate commerce

• States may NOT discriminate against out-of-state citizens in order to provide some commercial benefit to in-state citizens

If a state law burdens interstate commerce, it violates the DCC UNLESS it is necessary to achieve an important government purpose

• It is NOT an important government purpose to benefit in-state or local business (violation of DCC)
• BUT a state may burden if there is Congressional approval

Market participant exception: state government may prefer in-state citizens in...

1. Receiving benefits from government programs
   
2. Dealing with government-owned businesses

Front 28

Privileges and Immunities Clause of Article IV

Back 28

State law is unconstitutional if it denies citizens of another state any of the privileges and immunities of its own in-state citizens

• States may NOT discriminate against out-of-state citizens with regard to their ability to earn their livelihood

If a state law discriminates against out-of-state citizens regarding their right to earn a living, it is unconstitutional UNLESS it is necessary to achieve an important government purpose

• BUT corporations and aliens do NOT receive protections under the privilege and immunities clause
• To be constitutional, there must be an important government purpose AND no less discriminatory alternative

Front 29

State Taxation of Interstate Commerce

Back 29

States may NOT use taxation to benefit in-state businesses (e.g., through tax incentives)

• State may only tax activities if there is a substantial nexus to the state (e.g., CA cannot tax a company wholly owned an operated in NY)
• State taxation of interstate businesses must be fairly apportioned (state can only tax revenue that is connected to the state)

Front 30

Full Faith and Credit

Back 30

Courts in one state MUST give full faith and credit to the judgments of courts in other states, so long as:

1. Court rendering judgment had PJ and SMJ
2. Judgment was on the merits
3. Judgment is final

Front 31

State Action

Back 31

Generally, the Constitution only applies to government action

• BUT the 13th Amendment applies to BOTH private and government parties (only badges and incidents of slavery)

Exceptions to state action (Constitution applies to private parties)

1. Public function - private party is performing a task traditionally and exclusively done by the government (e.g., company town)
2. Entanglement - government affirmatively authorizes, encourages, or facilitates unconstitutional activity

Examples of government entanglement

1. Racially restrictive covenants
2. Government leases to private party engaged in racial discrimination
3. State provides books to schools engaged in racial discrimination
4. Private entity regulates interscholastic sports within the state
5. BUT NOT when a private school fires a teacher because of her speech (even if the state funds over 99% of the school)
6. BUT NOT when the NCAA orders suspension of a coach at a state school
7. BUT NOT when a private club, which has a liquor license, engages in racial discrimination

Front 32

Bill of Rights: Application

Back 32

Bill of Rights ONLY applies directly to the federal government

• BUT applies to the states through the 14th Amendment

Amendments NOT applied to the states

1. 3rd Amendment - quartering troops
2. 5th Amendment - right to grand jury indictment (states are NOT required to use grand juries)
3. 7th Amendment - right to jury in civil cases (states are NOT required to provide juries in civil cases)
4. 8th Amendment - right against excessive fines

Front 33

Levels of Scrutiny

Back 33

Levels of Scrutiny

1. Rational basis
2. Intermediate scrutiny
3. Strict scrutiny

Front 34

Rational Basis

Back 34

Law will be upheld if rationally related to legitimate governmental purpose

• Challenger (plaintiff) has burden
  
• Very deferential to government
• Government must have a conceivable legitimate purpose (BUT it does not have to be an actual purpose)

Front 35

Intermediate Scrutiny

Back 35

Law will be upheld if substantially related to an important government purpose

• Government has burden
• Court only considers the government's actual purpose
• The means chosen for the law's execution must be narrowly tailored

Front 36

Strict Scrutiny

Back 36

Law will be upheld if necessary to achieve a compelling government interest

• Government has burden
• Court only considers the government's actual purpose
• Government must prove that its purpose was crucial
• Government must prove that no less restrictive alternative existed

Front 37

Procedural Due Process

Back 37

Required for:

1. Deprivation of life
2. Deprivation of liberty - violation of constitutional right
3. Deprivation of property - requires entitlement (reasonable expectation for continued receipt of a benefit

Government negligence is NOT sufficient for a deprivation of due process

• Generally there must be intentional government action (or at least recklessness) to deprive due process
• BUT in emergency situations, the government is liable under due process ONLY IF its conduct shocks the conscience
• Generally government failure to protect people from privately inflicted harm does NOT deny due process

Front 38

Procedural Due Process: Required Procedures

Back 38

The court must balance:

1. Importance of the interest to the individual
2. Ability of additional procedures to increase the accuracy of fact-finding (effectiveness)
3. Government's interests (e.g., efficiency)

Front 39

Procedural Due Process: Examples

Back 39

1. Termination of welfare benefits - notice and hearing before termination
2. Termination of social security benefits - only post-determination hearing required
3. Public school student discipline - notice of charges and opportunity to explain (BUT NO due process for corporal punishment in school)
4. Termination of parent custody - notice and hearing before termination
5. Punitive damages - require jury instructions and judicial review (grossly excessive damages violate due process)
6. Review of enemy combatant status - notice of charges, representation, and meaningful opportunity to challenge status
7. Government seizure of assets - notice and hearing before attachment/seizure, except in exigent circumstances (BUT NOT if the person would get rid of property regardless)

Front 40

Economic Liberties

Back 40

Only rational basis review applies to laws affecting economic rights

Takings: Government may take private property for public use for just compensation

• Possessory taking - government confiscation or physical occupation of property
• Regulatory taking - government regulation lease no reasonable economically viable use of the property
• Government conditions on property development must be proportionate to the burden imposed

Front 41

Contracts Clause

Back 41

States may NOT impair the obligations of contracts

• Applies ONLY to state interference with existing contracts
• Intermediate scrutiny applies
• BUT if the law interferes with a government contract, then strict scrutiny applies

Front 42

Ex Post Facto Laws

Back 42

Ex post facto laws are laws that criminally punish conduct that was lawful when it was done, or increases punishment for a crime already committed

• Does NOT apply to civil cases
• If a law imposes retroactive civil liability, rational basis review applies

Front 43

Substantive Due Process: Privacy Rights

Back 43

The government may interfere with privacy rights ONLY IF it meets the applicable standard of review

1. Right to marry - strict scrutiny
2. Right to procreate - strict scrutiny
3. Right to custody of one's child - strict scrutiny (must show a compelling reason to terminate custody)
4. Right to keep family together - strict scrutiny (BUT the individuals MUST be related to one another to constitute family)
5. Right to control the upbringing of one's child - strict scrutiny (court cannot order grandparent visitation over a parent's objection)
6. Right to purchase and use contraceptives - strict scrutiny
7. Right to abortion - undue burden test, depending on the viability of the fetus
8. Right to engage in private consensual homosexual sex - no level specified
9. Right to refuse medical treatment - no level specified
10. BUT there is NOT a right to physician-assisted suicide

Front 44

Substantive Due Process: Right to Abortion

Back 44

Prior to viability, state may NOT prohibit abortions

• BUT states may regulate abortions so long as they do NOT create an undue burden on the ability to obtain abortions
• Examples of permissible regulations: 24-hour waiting period, requirement that abortions be performed by licensed physicians, prohibition of partial birth abortions

After viability, states MAY prohibit abortions

• BUT the government may NOT prohibit abortions that are necessary to protect the woman's life/health
  

The government has no duty to subsidize abortions or to provide abortions in public hospitals

• Government is NOT required to use government funds or facilities to provide abortions

Spousal consent laws are NOT constitutional

• Right to abortion belongs to the woman, so no one else can veto that decision
• BUT parental notice for unmarried minors may be required, SO LONG AS the state creates an alternative for a minor to obtain an abortion by going before a judge without parental consent, if it would be in the minor's best interests (or that she is mature enough to decide herself)

Front 45

Substantive Due Process: Right to Bear Arms

Back 45

People are free to have guns in their own homes for security

The government can regulate:

1. Who can own guns
2. Where people can have guns
3. What types of weapons people may own

Front 46

Substantive Due Process: Right to Travel

Back 46

Laws that prevent people from moving into a state are subject to strict scrutiny

Durational residency requirements (person must are subject to strict scrutiny

• E.g., a person must live in a place for a period before receiving a benefit
• For voting, 50 days is the maximum durational residency requirement allowed

Restrictions on foreign travel are subject only to rational basis review

Front 47

Substantive Due Process: Right to Vote

Back 47

Laws that deny some citizens the right to vote are subject to strict scrutiny

• BUT regulations of the electoral process to prevent fraud only need to be desirable when balanced
• Poll taxes are unconstituional
• Property ownership requirements to vote are almost always unconstitutional (but may be permitted if balanced, such as voter ID laws)

One-person, one-vote must be met for ALL state and local elections

• At-large elections are constitutional UNLESS there is proof of a discriminatory purpose
• Use of race in drawing election district lines must meet strict scrutiny

Counting uncounted votes without some standards in a presidential election violates equal protection

• Must have pre-set standards to count uncounted votes

Front 48

Equal Protection: Classifications

Back 48

Apply strict scrutiny to classifications based on:

1. Race
2. National origin
3. Alienage

Apply intermediate scrutiny to classifications based on:

1. Gender
2. Discrimination against non-marital children

Apply rational basis review to classifications based on:

1. Age
2. Disability
3. Sexual orientation
4. Wealth/poverty
5. Economic regulations

Front 49

Free Speech: Definitions

Back 49

Content-based laws

• Must meet strict scrutiny
• Subject matter restrictions - restriction based upon the topic of the message
• Viewpoint restrictions - restriction based upon the ideology of the message

Content neutral laws

• Must meet intermediate scrutiny

Prior restraints

• Judicial order or administrative system that stops speech before it occurs
• Must meet strict scrutiny
• BUT the government may require a license for speech, BUT ONLY IF there is an importance reason for licensing and there are clear criteria that leaves no discretion in deciding who gets a license

Vagueness

• A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed

Overbreadth

• A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows

Symbolic speech

• Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message, and
• Impact on communication is no greater than necessary to achieve the government's purpose

Front 50

Free Speech: Incitement of Illegal Activity

Back 50

Government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality

Front 51

Free Speech: Obscenity & Sexually Oriented Speech

Back 51

Speech constitutes obscenity if:

1. Material appeals to the prurient interest (based on community standards)
2. Material is patently offensive under the law prohibiting obscenity
3. Taken as a whole, material is lacking serious redeeming artistic, literary, political or scientific value (based on national standards)

Government may regulate obscene and sexually oriented speech:

1. Regulate location of adult bookstores/movie theaters through zoning ordinances
2. Completely ban child pornography, even if it is not obscene (BUT the material must depict actual children)

BUT the government may NOT punish private possession of obscene materials

• BUT it MAY punish for possession of child pornography

Front 52

Free Speech: Profane & Indecent Speech

Back 52

Profane and indecent speech is generally protected, except for:

1. Over broadcast media (government has more latitude to limit speech on free broadcast media)
2. In schools

Front 53

Free Speech: Commercial Speech

Back 53

Commercial speech that is NOT protected:

1. Advertising for illegal activity
2. False and deceptive ads

Government may prohibit commercial speech that inherently risks deception

1. May prevent professional from advertising/practicing under a trade name
2. May prohibit attorney in-person solicitation of clients for profit (BUT lawyers may offer free representation in-person)
3. BUT may NOT prohibit accountants from in-person solicitation of clients for profit

Other commercial speech (e.g., non-deceptive, legal) can be regulated if:

1. Intermediate scrutiny is met
2. Regulation is narrowly tailored (but the regulation does NOT need to be the least restrictive alternative)

Front 54

Free Speech: Defamation & IIED

Back 54

If plaintiff is a public official/public figure, plaintiff must prove:

1. Statement is false, and
2. Actual malice (defendant knew statement was false, or acted with reckless disregard for the truth)

If plaintiff is a private figure on a matter of public concern, plaintiff must prove:

1. Statement is false, and
2. Negligence by defendant
3. If plaintiff wishes to recover presumed or punitive damages, plaintiff must prove actual malice

If plaintiff is a private figure regarding a matter not of public concern, plaintiff can recover presumed or punitive damages without showing actual malice

IIED

• Apply the same rules as defamation

Front 55

Free Speech: Privacy

Back 55

Government may NOT create liability for:

1. Truthful reporting of information that was lawfully obtained from the government (e.g. information on rape victim)
2. Media broadcasts of illegally intercepted calls, so long as the media did NOT participate in the illegality AND it involves a matter of public importance
   
3. BUT the government MAY limit its dissemination of information to protect privacy

Front 56

Free Speech: Speech by Government Employees

Back 56

Speech by government employees on the job in the performance of their job duties is NOT protected

Front 57

Free Speech: Public Forums

Back 57

Public forum

• Government properties that have traditionally been opened up to speech (e.g., sidewalks, parks)
• Regulations must be content neutral (subject matter and viewpoint neutral)
• If NOT content neutral, regulations must meet strict scrutiny

Time, place, and manner regulation

• Must serve an important government purpose, and
• Must leave open adequate alternative places for communication
• Does NOT need to be the least restrictive alternative, BUT must be narrowly tailored

Front 58

Free Speech: Non-Public Forums

Back 58

Non-public forums

• Government properties that the government MAY close to speech

Government may regulate speech in non-public forums, so long as the regulation is:

1. Reasonable
2. Viewpoint neutral

Front 59

Free Speech: Designated Public Forums

Back 59

Designated public forums

• Government properties that the government could close to speech, but chooses to open up to speech
• Same rules as public forums

Time, place, and manner regulation

• Must serve an important government purpose, and
• Must leave open adequate alternative places for communication
• Does NOT need to be the least restrictive alternative, BUT must be narrowly tailored
  

Front 60

Free Speech: Limited Public Forums

Back 60

Limited Public Forums

• Government properties that are limited to certain groups or is dedicated to discussion of only some subjects

Government may regulate speech in limited public forums, so long as the regulation is:

1. Reasonable
2. Viewpoint neutral

Front 61

Freedom of Association

Back 61

Strict scrutiny is required when:

1. Law prohibits/punishes group membership
2. Requires disclosure of group membership, where such disclosure would chill association

In order to punish group membership, government must prove that a person:

1. Is actively affiliated with the group
2. Knows of its illegal activities, and
3. Joined with specific intent of furthering those illegal activities

A law MAY prohibit a group from discriminating, UNLESS the law interferes with the intimate association or expressive activity of the group

Front 62

Free Exercise

Back 62

Free exercise clause

• Generally, government may make no law abridging the free exercise of religion
  

Person cannot use free exercise to challenge neutral law of general applicability

• BUT if the law targets religion or religious conduct, then strict scrutiny applies

Government may NOT:

• Deny benefits to individuals who quit their jobs based upon religious objection
• Hold a religious institution liable for the choices it makes as to who should become ministers

Front 63

Establishment Clause

Back 63

Lemon Test - in order not to violate the establishment clause:

• There must be a secular purpose for the law
• The effect must be neither to advance nor inhibit religion
• There must not be excessive entanglement with religion

Government sponsored religious activity in public schools is unconstitutional

• BUT religious student and community groups must have the same access to school facilities
• BUT government may give assistance to parochial schools, so long as it is NOT used for religious instruction (may provide vouchers to parents, and the parents may use them for parochial schools)